Ownership

About Ownership

Definitions.

Salmond; Ownership is a relation between a person and any right which is vested in him.

In wider sense, ownership extends to all classes of right whether proprietary   or personal, in rem or in personam, in re propria or in re aliena. 

In strict sense, it extends to liberties, powers and immunities.

Austin: Ownership is a right “ over a determinate thing, indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration.

Sohm:    It is a right unlimited in respect of its contents, to exercise control over a thing.

Holland : Ownership is a plenary control over an object.

Hibbert:  The fullest ownership consists four rights e.g.

(1)     the right of using the thing

(2)     the right of excluding other from using it.

(3)     the right of disposing of the  thing

(4)     the right of destroying the thing.

Land and absolute ownership.

According to Hibbert, one cannot have absolute ownership in land because land cannot be destroyed.

To him, one can have absolute ownership only in moveable because, because one can destroy them.

Markby: “ If all the rights over a thing were centered in one person, that person would be the owner of the thing ‘.

Paton : According to him, the  full rights of the owner are;

                (1) the power of enjoyment (in any way the owner pleases)

                (2) Possession which include the right to exclude others.

                (3) power to alienate inter vivos, or to charge as security.

Characteristics of ownership.

1.        Ownership is absolute or restricted/ limited,

Ownership is limited where there are joint owners.

Ownership is restricted when the officers of justice enter upon one’s property to execute various processes.

2.        Ownership is incorporeal

Ownership is many also be restricted during national emergency and wartime. During such period palatial buildings are acquired for the use of the army.

3.        An owner has to pay taxes to the State and the exercise of his right of ownership is subject to paying taxes.

4.        An owner must not exercise his right of ownership in such a way as to violate the right of other owners.

An owner cannot make unlimited use of his land because it can create nuisance to other (Ryland V. Fletcher)

5.        An owner cannot transfer his land in any way he likes.

                         Examples:

(a)      he cannot transfer his property to defraud his creditors,

(b)     sometimes he cannot transfer his property to alien.

6.        Infants and lunatics are debarred from exercising of the right of ownership over  immovable property because they are  under disability in the eye of law.

7.        Ownership generally does not terminate with owner’s death. It passes on to his legal heirs in case of intestacy.

8.        Ownership can only vest in a person.

9.        Ownership denotes relation between a person & a thing.

Characheristics of Austine’s ownership.

1.        In definite in point of user.

Practically this is not possible.

Every owner is to use his ownerships so as not to interfere with the rights of other persons.

        Example : No owner can use loudspeakers in his own land so as to cause nuisance to his neighbors.

2.        Unrestricted in point of disposition.

Owner’s right of disposition is not so unlimited.

Example: Owner’s right of disposition can be curtailed by the existence of encumbrances.

3.        Unlimited in point of duration.

The right of ownership exists so long as the thing owned exist. Because the ownership relates to a things.

So the duration of the ownership continues till the thing is in existence.

Thus it seems that the definition of Austin though containing a great deal of truth has become inadequate owning to the complex system of society.

Kinds of ownership

A. Corporeal and Incorporeal ownership.

Corporeal ownership is the ownership of a material object, eg, house, coin, land etc.

                Incorporeal ownership is the ownership of a right, e.g, debt, patent, right of way, goodwill etc.

Distinction

Corporeal                                                                           Incorporeal

1. Object or thing can be                                             1.  Aliter.

Perceived and felt by senses.                                         ( They are not material object but  

It is tangible                                                                      intellectual one.

B. Sole ownership and Co- ownership

Sole ownership: If the right is vested in a single person the ownership is sole.

Co- ownership: When the right is vested in more than one person jointly it is co- ownership.

NB:  In co- ownership, the owners need not own separate share each but their right is an undivided unity which is vested in more than one simultaneously.

Two Forms of Co- ownership

(1) Ownership in common

                   &

(2) Joint ownership

(1) Ownership in common (common ownership/ tenancy in common)

When 2 or more owner hold a land in such a manner that they have an undivided possession.

- Here none is entitled to posses any part of the land exclusively.

- Both the owners occupy the land in common with others.

Doctnine of heritability, not survivorships

In this common ownership, if any one dies his share does not pass to other survivors but devolves upon his heirs.

(2) Joint ownership ( also called Joint tenancy)

The right of a joint owner after his death passes on to the other survivors.

Possession

Every joint owner posses the joint property “ Per my et per tout i,e by every part and by the whole

C. Trust and Beneficial ownership

Trust ownership: It means a duplicate ownership

-          Trust property is owned by two persons at the same time e,g:

(1)     Trustee &

(2)     Beneficiary.

Here trustee uses the trust thing for the benefit of the beneficiary.

Trust & contract, distinction.

 Contract                                                                                Trust.

1. contract creates right in personam.                                   1.Trust binds all the transferees save a

                                                                                                bonafide purchaser for value without

                                                                                                notice of the trust.                                                               

 2.There is no fiduciary relation between

 the promissor and promisee.                                                  2. There is fiduciary to relation between

                                                                                                the trustee & the beneficiary.

3.Contract can be enforced by parties                                    3. Beneficiary can enforce the trust in case

to it, not by stranger.                                                               of breach though he is not a party to it.

Trust & Agency, distinguished.

Trust                                                                                      Agency

1. Trustee has full title to the property                                     1. He is not the owner, but representative

in law.                                                                 of the principal.

 He is the legal owner.                                                             The principal is the owner of the property.

                                                                                                 

2. Trustee is personally responsible for

all the contracts made by him.                                                 2. Agent is not personally responsible for the contracts entered into by him because he acts on behalf of the principal.

3. Trustee is not subject to the control                                     3. Aliter.

of the author of trust beyond his (trustee)

obligation.

4. Agency may terminate on the death                                     4. Aliter

or at the will of either party                                                      

D. Legal ownership and equitable ownership.

Legal : Ownership of the trustee is legal.

 Equitable : Ownership of the beneficiary is equitable.

E. Vested and contingent ownership

Vested ownership: When all the events to Vest the property in the owner have happened and the owner’s title is already perfect.

Contingent ownership: When some of the events necessary to vest the property have happened and the perfect ownership is only possible when some other events are happended.

Example : (i) A bequeaths all his property to B. Ownership is complete when A dies. (Note : Will takes effect after the death of the testator).

(ii) A makes a gift to B for life and after his (B) death to such son of A as shall first attain the age of 18. The ownership accruing to any such son is a contingent ownership.

Difference between the two

Vested	Contingent
1.        This ownership is complete in itself. It is independent 2.        It is transferable and heritable. 3.    This ownership is not defeated by the death of the transferee before he obtains possession.	1.   It is dependent on the happening of certain contingency. 2.    Aliter 3.     Aliter.

 Title

Title is a link between a person and an object. It is the right to ownership of property.

Salmond: Title is the de facto (in fact) antecedent of which the right is the de jure (in law)  consequent.

Example: If I own a pen, law gives me a right over it. Similarly law does not give right to any other over that pen. These facts are constitutive of my title to the pen.

Vestitive Facts or Titles

— Facts which crate, transfer or destroy rights are called vestitive facts.

Kinds of Vestitive Facts

1. Investitive Facts: Investitive facts create right. But a right may be created de novo i.e. it may have no previous existence, or it may be created by transfer of an existing right.

The right which is created anew without previous existence is called original right and the right created by transfer and having previous existence is called derivative right.

Austin: Investitive events are original and derivative.

— Right acquired from the State directly is original e.g. occupancy right.

— And acquisition of a right through another in whom the right formerly resided is called derivative right.

2. Divestitive Facts: It means the taking away, or causing the loss of the rights.

Divestitive facts are of 2 kinds:-

(a)      Extinctive: divesting a right by destroying.

Example: The surrender of a lease to the lesser divest the rights of the lessee by destroying the lease.

(b)     Alienative: devesting a right to some other owner by transferring.

NB. (1) Derivative titles and alienative facts are the same facts.

(2)Thus what is derivative to the purchaser is alienative to the seller.

Bentham’s Classification

He described the whole class of facts as “dispositive facts” i.e. the facts whereby rights or duties are engendered (created), transferred or extinguished.

— According to him dispositive facts are: (i) investitive (ii) divestitive and (iii) translative.

—Also according to him, investitive facts are:

(i) collative (which confer rights) and

(ii) impositive (which impose duties)

— He sub-divided divestitive facts into:

(i)       destructive (putting end to right)

(ii) exonerative (extinguishing or relieving from duty)

Acts in law

The term “title” is often referred to as “act in the law” or “juristic act”.

— Act in the law is “an act the intention of which is directed to the production of a legal result.

— According to Holland, the act in law is “ the manifestation of the will of a private individual directed to the origin, termination or alteration of rights.

Elements of a juristic act or act in law

There are 4 elements e.g.

(1)     The will—the actor must direct his will

(2)     The expression/declaration of the will/intention

(3)     Power to bring about legal result desired

(4)     Material validity— the object which was desired to achieve must not be prohibited by law.

Kinds of Acts

Acts in the law are of 2 kinds. e.g.,

(1)     Unilateral act: The acts where the will of only one party is effective.

Example: Will, declaration of trust etc.

(2)     Bilateral act: The acts which involve the consenting will of two or more distinctive persons. e.g. contract, mortgage or other conveyance.

— Bilateral acts are called agreements

Classes of Agreements

Agreements may be divided into 3 classes as they create, transfer and extinguish.

(1)     Agreements which create rights are contract and grants.

(2)     The agreements which transfer rights is called assignment, e.g. sale.

(3)     Agreements which extinguish rights are release, surrender, discharge.

Valid, void, invalid agreements

Valid: fully operative, enforceable by law

Invalid: It is either void (nullity) or voidable (not nullity but operation is conditional)

Void: destitute of legal effect, unenforceable.

Voidable: agreement which can be avoided by either party.

Agreement when becomes invalid

According to Salmond an agreement may be rendered invalid on any one or more of the following defects:

(1)     Incapacity: Minors and lunatics are legally incapable of making agreement

(2)     Informality: Formal agreements require legal formalities and when such formalities are not complied with, the agreements are invalidated.

Example: Compulsorily registrable documents (e.g documents mentioned under section 17 of the Registration Act 1908) are invalid unless the formalities of registration is done.

(3)     Illegality: Agreements which are declared by law to be invalid (e.g. wagering contracts)

(4)     Error or mistake: Mistake may be either essential or unessential.

Essential mistake: The mistake which relates to the contents of the agreement or facts which are essential to the agreement is called essential mistake.

Example: A agrees to sell land to B. But A is thinking one piece of land where B is thinking another. This agreement is invalidated by essential mistake as it relates to the contents of the agreement.

—Section 20 of the Contract Act 1872 clearly says that where both the parties to an agreement are under a mistake as to matter of fact essential to the agreement is void.

Unessential mistake: In unessential mistake the error does not relate to the contents of the agreement but only to some external circumstances which induced one party to give his consent.

—The above mistake will not invalidate the agreement.

Example: A agrees to buy B’s horse because he believes it to be sound, whereas in reality it is unsound.

                        This mistake shall not vitiate the agreement unless caused by misrepresentation by other party.

(5)     Coercion: Free consent is essential to validate a contract, whereas coercion (sec. 19 of the Contract Act, 1872), undue influence make it voidable.

Want of consideration: The law require valuable consideration for the validity of a contract. It need not, however, be adequate.